The New York Medical Malpractice Law Blog » legal trends

Judge Ann Pfau Joins New York’s Efforts at Early Resolution of Medical Malpractice Cases

Andrew Barovick — Sat, 22 Oct 2011 22:48:07 +0000

Please join me at my new new site as I take a peek at what our Chief Administrative Judge will bring to the table when she becomes Coordinating Judge of NY’s Medical Malpractice Program.

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Tort “Reform,” Texas Style

Andrew Barovick — Tue, 31 May 2011 12:59:06 +0000

The State of Texas loves to crow about it’s allegedly successful tort “reform” program. Of course, whether or not it has been successful depends on which article you read, and whether you’re an insurance executive or a wronged patient. And Texas does not like to acknowledge that one clear result of its efforts is that it has become one of the most expensive states in which to receive healthcare.

But here is something else that Texas would probably not want medical consumers to know. If you are a neurosurgeon from, say, Minnesota, who has inflicted enough harm on your patients that your ability to practice has been severey curtailed, all you need do to kick start that income stream is–you guessed it–move to Texas. Just pay your licensing fee, and start practicing, just as Dr. Stefan Konasiewicz did.

According to the Duluth News Tribune, Minnesota is as much to blame as Texas in this unfortunate scenario, as sanctions accrued in that state need not dog a doctor when he moves to another.

So, yes, this is yet another example of the abject failure of the tort “reform” movement to address a real cause of medical malpractice: unskilled physicians who are rarely, if ever, disciplined in a manner that prevents harm to the medical consumer. Tort “reform” is not going to solve this problem.

But it would be nice if hospitals and medical societies stopped looking the other way when doctors under their supervision injure and/or kill patients. It would be nice if “doctor discipline” was more than just a sometime-uttered phrase. And actually imposing recommended discipline would lend the medical societies in every state more credibility when they talk about what’s good for healthcare.

Will this happen? Probably not. But a medical consumer can dream, can’t he?

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What’s New in NY Medical Malpractice? Arons Authorizations/Medical Indemnity Fund

Andrew Barovick — Fri, 27 May 2011 21:29:15 +0000

Compensation to families of infants injured at birth due to medical malpractice is about to undergo a big change, but whether or not it’s for the better is anybody’s guess. The class of plaintiffs that will be affected is composed of those infants who suffered neurological impairment to the brain or spine during the birth process, and the area of compensation involved is future medical expenses.

At present, if the injured infant’s family prevails at a medical malpractice trial, it is awarded, as part of the damages calculus, a sum of money to cover future medical expenses. That sum is usually the result of calculations performed by an expert economist retained by the plaintiff’s family. As of October 1, 2011, that will change. Money for future medical expenses will no longer be given to the affected families at the time of the verdict or settlement. Instead, such families will have to register for a medical indemnity fund managed by New York State, from which they will supposedly receive enough money to properly care for their injured children. Luckily for us, the workings of this plan have been nicely summarized by attorney Glenn Verchick in the most recent Brooklyn Barrister.

As Mr. Verchick points out, the purpose of the plan is to lower malpractice premiums for hospitals. And the same hospitals will no longer be saddled with paying for the future medical care that the negligence of their physicians made necessary, since the fund will assume that responsibility. So, to the extent that such payments contributed to improvements in patient safety, that opportunity has been lost. And it strikes me as strange that with the wealth of opportunities to legislate improvements in OB/GYN-related patient safety, the bill proposed by Assemblyman Rory Lancman, that would force all NYS hospitals to institute programs mirroring the hugely successful patient-safety program at NY Weill Cornell Medical Center, is not being acted on.

Another development being closely watched by medical malpractice lawyers on both sides of the aisle is legislation that may overturn the Arons v. Jutkowitz case, in which the NY Court of Appeals granted defense lawyers the right to conduct informal, ex parte interviews of plaintiffs’ treating physicians, as long as the lawyers obtained the proper HIPAA-compliant authorization ahead of time, and waited until the close of discovery to contact the physicians. Many plaintiff’s lawyers were and remain disturbed by the Arons case, for reasons best left to more articulate bloggers like Eric Turkewitz. Suffice it to say that the decision showed a certain naivete on the part of the Court with regard to human behavior, and that it ignored the harm that could accrue toward a plaintiff’s case by allowing such an unregulated exercise to take place. But now there is a bill, also proposed by Assemblyman Rory Lancman, that would effectively reverse the Arons decision. It’s nice to see someone looking out for the interests of those injured as a result of medical malpractice now and then. Let’s hope this bill gains some traction. However, in the political atmosphere that produced a one-sided, State-sponsored Medicaid Redesign Team, utterly lacking in representation by patient-safety interests, I’m not feeling very optimistic.

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A Day In The Trenches, Or, How Med Mal Defense Lawyers Behave At EBTs

Andrew Barovick — Thu, 19 May 2011 09:40:43 +0000

Yesterday, I witnessed a senior partner at a major medical malpractice defense firm act like a toddler. In fact, he became, before my eyes, the neighborhood kid who becomes angry when he does poorly in the backyard football game, and takes his football home.

Let me set the scene. As is usually the case, I was outnumbered. There were 3 defense lawyers, one of whom was defending his client, and me. Things began inauspiciously enough. I asked the Dr. the topic of the one article he had published in his career. The Dr., who had been trained in gastroenterology, responded “parasites.” And a defense lawyer for one of the codefendants immediately rose to the occasion, displaying his wit by chuckling “like plaintiff’s lawyers.” Mind you, this fellow was also quite senior in the defense bar, until his firm dissolved, and he was taken in by one of the still-financially-healthy defense firms. Of course, it may not have occurred to him that without plaintiff’s lawyers bringing cases on behalf of plaintiffs, he would not have his job.

But on to the deposition. It should have been a short one, and would have been, had the defense lawyer defending the subject of the deposition played by the rules. Unfortunately, that was not to be. We came to a question that the defense lawyer found objectionable. There’s nothing wrong with raising the objection, and he did so. However, the lawyer then directed the witness not to answer my question, which was improper. According to 22 NYCRR 221.2,

“A deponent shall answer all questions at a deposition, except: (a) to preserve a privilege or right of confidentiality; (b) to enforce a limitation set forth in an order of a court; or (c) when the question in plainly improper and would, if answered, cause significant prejudice to any person…”

The defense lawyer’s objection was, in essence, one based in a perceived lack of relevancy. But even assuming the lack of relevancy of my question, the defense lawyer could not articulate how anyone would be prejudiced. And in practice, I would be surprised if a lawyer ever could, since what is said at a deposition will often never come in as evidence at trial if the proper trial objection is made.

And frankly, the “new” rules (which became effective in 2008) were designed to put a halt to the practice of many less ethical lawyers, who would delay, obstruct and sometimes stop completely depositions that were in progress over minor issues that would ultimately be addressed at trial.

When it became clear that the defense lawyer wouldn’t budge or engage in reasonable conversation, I called the assigned judge, and we consulted her for a ruling. Here’s where things get really good. The judge told the defense lawyer that his client had to answer my question, though in the same breath, suggested that it was not an entirely relevant question. Instead of allowing that to put an end to the matter, the defense lawyer told the judge that he would not abide by her decision, and would instead “put in on papers.” He indignantly claimed that all medical malpractice litigation would be negatively affected if he allowed my question to be answered, and continued to block it.

So after about half an hour of arguing over the telephone before the judge, and awaiting her decision, the defense lawyer rejected it when it was not favorable to him. In the process, he kept his client in the deposition for an extra half hour, wasted my time and that of the counsels for the codefendants, and did so knowing that he was wrong on the law. But I’ll bet he gets some great billing out of it.

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NYS Commission on Public Integrity Wants to Muzzle Me

Andrew Barovick — Fri, 01 Apr 2011 02:20:50 +0000

Why would it want to do that? All I did was suggest that the Commission may have had ulterior motives when it dismissed, without so much as an investigation, an ethics complaint made by the Center for Justice and Democracy about the lack of balance on the Medicaid Redesign Team.

And yet, today I received this in my email box:

Dear Mr. Barovick,

In your blog posting on March 26 (“In New York State, Lots of Irony In Integrity”) you wrote:

Well, here’s something that consumers in New York State might be interested in. The good folks on the NYS Commission On Public Integrity serve at the pleasure of the Governor. And so, speaking of the subject of integrity, its members have a personal stake in pleasing the same entity. Could it be that the NYS Commission On Public Integrity was unduly influenced by that interest when it outright rejected the conflict of interest claim? And wouldn’t that be the ultimate irony?

I am writing to inform you that the Commissioners do not serve at the pleasure of the Governor. In order to insulate the Commission from such influence, they serve five-year terms and cannot be removed except for “substantial neglect of duty, gross misconduct in office, inability to discharge the powers or duties of office or violation of this section, after written notice and opportunity for a reply.” [Executive Law § 94(7)]

I believe that a correction is in order.

Walter C. Ayres

Director of Communications

Commission on Public Integrity

540 Broadway

Albany, New York 12207

And here is my response to Mr. Ayres:

Dear Mr. Ayres:

I disagree with you. It is the Governor who can remove commission members, and therefore, they serve at his pleasure. The statutory reasons that allow for such discharge are, as I am sure you will agree, vague enough to justify removal whenever the Governor feels like getting rid of someone who is being particularly pesky to him or his agenda.

I also think that your organization made a decision based not on reason or ethics, but pure politics. So to me, you do not have sufficient credibility or standing to complain about my post, which I will not change.

Thanks for writing.

Andy Barovick

So what’s really going on here? The Commission doth protest too much, methinks. Or, to put it another way, the Commission is reacting a bit dramatically because it doesn’t like being called out on its shortcomings of integrity. Yet the spirit of deception continues in Mr. Ayres’ own missive. He emphasizes that the commissioners cannot be removed except under several circumstances, but leaves out who it is that does the removing, i.e., the Governor. However, when you read the applicable statute, found in my initial post (click on link above), you cannot miss that fact.

Nobody in this debate will argue with a straight face that the Medicaid Redesign Team wasn’t stacked with hospitals and related organizations. Nobody will contest that there was no representation of patient-safety groups or consumers’ rights organizations. Nobody could deny that it is the patients harmed by malpractice who would be most affected by any tort “reforms” proposed by the MRT. So when the Center for Justice and Democracy filed its complaint, which was grounded in the stark imbalance and unfairness of the makeup of the MRT, that organization deserved, at the very least, to be heard. Instead, the Commission on Public Integrity muzzled them, and quickly. To give them a fair hearing would have involved conducting an investigation, and actually examining the serious, fact-based claims that the Center put forward. But the pillars of Integrity at the eponymous Commission must have had other things on their minds, such as political expediency. Because nothing else will explain the failure to accord the Center’s complaint even a momentary look.

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Medical Malpractice Caps Absent From NYS Budget

Andrew Barovick — Sun, 27 Mar 2011 22:08:22 +0000

According to Capitol Confidential, a budget agreement has been reached in Albany, and it does not include caps on medical malpractice awards. As many of you know, the Medicaid Redesign Team had proposed a $250,000 cap on non-economic damages, which would have unfairly impacted children, the elderly, the unemployed and under-employed.

No word yet on whether the Neurologically Impaired Infant Fund remains part of the budget. I hope not, since, among other things, nobody from the MRT has even been able to fully articulate where the money for such a fund would come from. Moreover, if compensation to a neurologically impaired infant is made through an administrative board instead of the courts, there will be little motivation for hospitals and individual physicians to focus on patient safety improvements. And, ironically, this “cost-saving” measure would simply shift the financial burden for a lifetime of care from those who caused the injuries, i.e. negligent doctors, to state taxpayers, who will ultimately be taxed when these infants are forced to turn to Medicaid.

But good news is good news. Medical consumers have won something today.

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